THE PEOPLE on rel. COOK a. THE BOARD OF POLICE

THE PEOPLE on rel. COOK a. THE BOARD OF POLICE. Supreme Court, First District; General Term, Dec., 1863. Repeal op Statute.—Metropolitan Police Act.—Summary Conviction.—Certiorari.—Return. The repeal of a statute or regulation creating an offence, before the trial for such offence, is a bar to a conviction. This rule applied to a summary conviction by the Board of Police, in the Metropolitan Police District, of a policeman for neglect of duty, under a statute making absence without leave penal, the conviction being upon evidence showing absence with leave. It seem, that to a writ of certiorari, in cases of summary conviction, the whole evidence which applies to the charge must-be set out, that the court may judge whether sufficient proof appears on the face of it to sustain every material allegation, and to justify the adjudication. (Per Barnard, J.) Certiorari to review a summary conviction under the Metropolitan Police Act. Stephen L. Cook, the relator, in 1861 was charged by acting Captain Blakelock with neglect of duty, viz., absence without leave. The complaint or charge was made to and heard by the Board of Police on the 26th of October, 1861, no notice whatever thereof having been given to him; and on such hearing, although the fact that Cook was ignorant of these charges was made known to the board, he was found guilty, and it was. ordered that “ he be, and is, hereby removed from office in police force.” Cook removed the proceedings of the board into the Supreme Court. The matter was heard in January, 1863, and a decision was rendered, reversing the judgment of said board, and restoring Cook to his former position in the department. A copy of this order was served on one of the commissioners on the 8th day of January, 1863, and the said Cook was thereupon again ordered to duty. On the 12th day of January, 1863, the relator was tried for neglect of duty, for three days’ absence in October, 1861, and was fined three days’ pay therefor. After this trial was concluded, and judgment rendered, a notice was again served on said Cook, charging him with “ neglect of duty,” in being absent from the 26th day of October, 1861 (the day when the board dismissed him), until the 8th day of January, 1863 (the day when the Supreme Court restored him). These proceedings were removed to the Supreme Court by the relator, and were reviewed by Mr. Justice Peckham, at special term; who reversed the proceedings and sentence. From this decision the Board of Police appealed. On this appeal, the court ordered an amendment of the writ of certiorari so as to make same returnable at general term, as the more correct practice. (Ante, 337.) Wm. Henry Arnoux, for the relator. I. The whole proceeding on the part of the commissioners was void, on general principles. 1. It is contrary to the spirit of law and natural justice that any man, or body of men, should sit on the trial of a matter by the decision of which they may be affected, or in which they may be interested. (Geter a. Commissioners for Tobacco Inspection, 1 Bay, 357.) 2. A person cannot in any case sit as a juror where the consequences of his own act are in question. The commissioners could not sit in a trial where they would be incompetent as jurors. (1 Co. Litt., 155, 156; People a. Vermilyea, 7 Cow., 108, 122.) 3. The board could not thus take advantage of its own wrong. The absence of Cook was neither voluntary, nor caused by any act of his own. It was the act of the board, which he resisted by all lawful means. II. They did not proceed according to the statute. The Board of Police has no common-law jurisdiction. Each member of the force is liable to removal from membership of the police force only after written charges are preferred, and after notice, &c. (Laws of 1860, 439, ch. 259, §§ 13, 63.) 1. The rules give the board no jurisdiction to try cases. The testimony may be taken by or before one or more of the police commissioners. The word may, here, as it generally does in statutes, means shall, or must. (Riley’s Case, 12 Abbotts’ Pr., 479; Mayor, &c., of N. Y. a. Furze, 3 Hill, 612.) 2. Where there is a total want of jurisdiction, appearance or consent will not confer it. 3. These rules apply with greater force in respect to statutes that are penal, that create a new jurisdiction, or that confer new and extraordinary powers of a special nature upon particular persons. They must be construed strictly. (Dwar. on Stat., 744, 750, 751.) III. The trial of Cook in January, 1863, on the charge of absence in October, 1862, was a bar to the present trial. 1. It is analogous to severing an account, and suing on part. (Staples a. Goodrich, 21 Barb., 317.) 2. If it is not severing an account, the judgment herein is bad, because the last trial covers the period embraced in the first trial. IV. The relator was charged with no violation of the rules. The rule being penal, the form of pleading in like cases must be observed. In an indictment under an act which contains an excepting clause, if the party is merely charged with the deed, while it appears from .the excepting clause that such deed is not under all circumstances forbidden, the indictment would be defective. (Dwar. on Stat., 660; State a. Godfrey, 24 Maine, 232; State a. Keen, 34 Ib., 500; State a. Barker, 18 Verm., 195; State a. Palmer, Ib., 570; Metzker a. People, 14 Ill., 101; Bonser a. State, 1 Smith (Wis.), 408; Elkins a. State, 13 Geo., 435; Reynolds a. State, 2 Nott & MeCord, 365; Commonwealth a. Hill, 5 Gratt., 682.) V. The rule having been amended before sentence, the relator could not be sentenced under the rule as it stood during the trial. (Hartung a. People, 22 N. Y., 95.) YI. The sentence was beyond the power of the commissioners. (Laws of 1860, 455, ch. 259, § 63.) YU. 1. The evidence is properly a part of this return, the sentence being in the nature of a summary conviction on a penal statute. (See Simpson a. Rhinelanders, 20 Wend., 103.) 2. The Supreme Court has a right to look into the return, and to decide the case upon its merits. (Buck a. Binninger, 3 Barb., 391; Birdsall a. Phillips, 17 Wend., 464. Citing Roach a. Cozine, 9 Ib., 227; Brown a. Betts, 13 Ib., 29; Rowan a. Lytle, 11 Ib., 617; Nichols a. Williams, 8 Cow., 13.) The Court of Errors decided on the merits on a return to a certiorari. (Niblo a. Post, 25 Wend., 280.) 3. The contrary doctrine has never been recognized in England, and has never met the approval of the profession, of the present Supreme Court, the Court of Errors, or the Court of Appeals, and may now be considered exploded. (Morewood a. Hollister, 6 N. Y., 309, 325; Pulling a. People, 8 Barb., 384; Anderson a. Prindle, 23 Wend., 616; Niblo a. Post, 25 Ib., 280.) 4. The true rule to be deduced from the late decisions is this, that the court will look into any errors in the proceedings or judgment, but will not reverse the decision because it is against the weight of evidence. (Pulling a. People, 8 Barb., 384; People a. Overseers of Ontario, 15 Ib., 286.) In this case there is no conflict of testimony on any material point. Aaron J. Vanderpoel, for the defendants. I. The Board of Police had jurisdiction of the person of the relator, and of the subject-matter. This court cannot review their determination. Justice Peckham concurred in this view. (People on rel. Dillon a. Board of Police, 15 Abbotts' Pr., 167; People a. Simpson, 37 Barb., 432; S. C., 14 Abbotts’ Pr., 457.) II. The charge against the relator was neglect of duty; of this he was found guilty. The specification alleged an absence from duty, and from the station-house, between certain dates. The rule pointed out matter which would be received as an excuse. This was as much matter of defence as payment would be in an action of assumpsit. The rule that the complaint should negative the excuse, is only applicable when the statute makes an act illegal, which, independent of the statute, would not be a breach of duty. (Laws of 1860, 444, ch. 259, §§ 29, 63; Police Pules, 1.) There is nothing in the law or rules requiring specifications. 1. If the strict rules are applied, then mere matter of excuse for the defendant need not be negatived. (Bennet a. Hurd, 3 Johns., 438; Teel a. Fonda, 4 Ib., 304.) 2. The strict rules of pleading and proceeding in the common-law courts never have been applied to tribunals of a military or to those of a quasi military nature. (Rathbun a. Sawyer, 15 Wend., 451; De Hart's Court-martial, 146; Sedgwick on Const., 134, 135; Hitchcock a. Wray, 6 A. & E., 943; Paddon a. Bartlett, 3 Ib., 884.) III. The rule had not been altered at the time the fine was imposed, so far as it had any relation to or bearing upon these proceedings. Under the rule in the first form, the forfeiture of pay was absolute; under the amended rule it was discretionary with the board whether or not it should be exacted. [MAJORITY — By the Court.—Barnard, J.] By the Court.—Barnard, J. The relator was charged with neglect of duty by reason of being absent from duty from October 26th, 1861, to January 8th, 1863. Of this charge, he was convicted. The effect of this conviction is, that he was convicted simply of being absent from duty for the period mentioned.. This conviction was for a matter which, at the time of its rendition, constituted no offence. As the rules stood at the time of this conviction, the conviction could only be for absence from duty without leave. The wording of the by-law clearly makes the offence to which the penalty is attached, absence without leave. So far as the proof is concerned, it perhaps would be incumbent on the accused, after the prosecution, had shown absence from duty, to show that he had leave, otherwise it would be presumed that he had not leave. However this may be, it is absolutely necessary that the record should show a conviction for some offence, punishable by the court which, or magistrate who, convicts. The record in this case, for the reasons above stated, does not show any such conviction. Conceding that by the law as it stood prior to its amendment, absence with or without leave constituted an offence to which a penalty was attached, yet that law having been amended so that absence with leave constituted no offence, no conviction could be had after such amendment for an absence with leave. Upon this ground alone the order below must be affirmed. It is not necessary now to inquire as to how far a common-law certiorari brings up the evidence, and as to how far the court will, on such certiorari, examine into the merits; but it may be observed, that from the opinion of Judge Edmonds in Morewood a. Hollister (6 N. Y., 309, 327), and the cases cited by him, it would seem that to a writ of certiorari in cases of summary conviction, the whole evidence which applies to the charge must be set out, that the court may judge whether sufficient proof appears on the face of it to sustain every material allegation and to justify the adjudication. I feel constrained, however, to remark that the judge at special term was not too strong in his language when he characterized the action of the Board of Police Commissioners in this case as a proceeding which shocks one’s sense of justice. I would merely amend his exclamation by saying that the proceeding is such as to shock every man’s sense of justice, excepting only that of the men then composing the board. Order affirmed with costs. [CONCURRENCE — Sutherland, P. J. Leonard, P. J.] Sutherland, P. J. I concur in the conclusion. Leonard, P. J. It is wholly inconsistent to find an officer guilty of neglect of duty for absence during the time he was unlawfully dismissed from service. The officer was not guilty of any offence for being absent at such time. The judgment ought to be affirmed with costs. Order of special term affirmed, and copviction reversed.